US will no longer defend Defense of Marriage Act in court

In a major policy shift on gay rights, the Obama administration announced on Wednesday that it would no longer defend the constitutionality of the Defense of Marriage Act in cases pending in federal court.

Attorney General Eric Holder made the announcement in a written statement and in a letter sent to House Speaker John Boehner.

It said both he and President Obama had concluded that the Defense of Marriage Act (DOMA) unconstitutionally discriminates against same-sex couples who are in marriages that are legally recognized by their state governments.

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“The president has instructed the [Justice] Department not to defend the statute in such cases,” Mr. Holder said in his statement. “I fully concur with the president’s determination.”

Speaker Boehner responded through a spokesman, questioning the timing of the announcement.

“While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation,” said Boehner spokesman Michael Steel.

Gay and lesbian married couples have filed lawsuits challenging the constitutionality of DOMA provisions that block same-sex married couples from receiving the same federal benefits and protections available to heterosexual married couples.

Last summer, a federal judge in Massachusetts declared the law unconstitutional in two cases. Those decisions are now on appeal at the First US Circuit Court of Appeals in Boston.

Five states and the District of Columbia recognize same-sex marriages. Twenty-nine states ban it in their state constitutions, and 13 others prohibit it by state statute.

DOMA was signed into law in 1996 by President Bill Clinton. It passed the House 342 to 67 and passed the Senate 85 to 14.

Justice Department lawyers are employed in part to defend challenged federal laws. But provisions allow the department to back out of certain cases.

It is unclear who, in the absence of the Justice Department, will defend the statute and whether they will have the necessary legal standing to mount such a defense.

In his letter to Speaker Boehner, Holder said Justice Department lawyers would “notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in [pending DOMA] cases.”

Holder said the executive branch is not abandoning DOMA. He said Mr. Obama has instructed his administration that it must continue to enforce the 1996 law and comply with the statute’s requirements – unless or until it is repealed by Congress or struck down as unconstitutional by the judiciary.

Section 3 of DOMA restricts the use of the word “marriage” to a legal union between one man and one woman as husband and wife.

The administration’s action was prompted by approaching deadlines in two pending federal cases – in Connecticut and New York. In both lawsuits, same-sex married couples are charging that DOMA’s ban on federal benefits to those in gay marriages violates the Constitution’s requirement of equal treatment. Justice Department lawyers assigned to defend the statute had until March 11 to file their opening briefs in the cases.

“In the two years since this administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court,” Holder said. Each of those cases, he said, had been filed in a jurisdiction where the binding legal precedent established a relatively easy standard to uphold the challenged law.

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